Tuesday, March 13, 2007

RIAA Sues Stroke Victim in Michigan

Although the defendant John Paladuk, an employee of C&N Railroad for 36 years, was living in Florida at the time of the alleged copyright infringement, and had notified the RIAA that he had not engaged in any copyright infringement, and despite that the fact that Mr. Paladuk suffered a stroke last year which resulted in complete paralysis of his entire left side and severely impaired speech, rendering him disabled, and despite the fact that his disability check is his sole source of income, the RIAA commenced suit against him on February 27, 2007.

For those of you who may not have followed the cases as closely as alter_fritz, Mr. Krichbaum is the attorney who handled Motown v. Nelson, and was, in that case, accused by a teenager of having told her what to say in her deposition testimony.

Isn't there something in the law where plantiffs have to assert to the best of their knowledge that those they sue aren't children, infirm, or in the military? Or is that just in terms of how long defendants are allowed in making their replies?

hehe barring ofcourse all the lawyers defending against the RIAA :P We love you guys, and gals ;)

Ray its been a long time since I posted but I've always been reading up and glad to see that you're still fighting the good fight. :)

Ok, moving on. Seriously, there should be more stern laws against this sort of thing, where if one brings this kind of case that is moraly questionable at best.. I'm thinking getting whacked with a cane like in Singapore.

Buuut they won't be touched, too many people in their back pockets.

Ray, I know you will, but I still want to say this anyways, I hope some time soon when you get a chance, and the judge denies the RIAA's motion to withdraw when they are losing their lil' temper tantrum lawsuit, that you'll go right for the throat, no punches pulled, that you nail them to the scales that lady justice holds.

About Henry VI, sadly I admit I've never actually seen the play in its entirety, but I wan't to. As to the would be tyrant, I think I'd rather take my chances with him/her than live with the constant day to day of hearing what the RIAA are doing to innocent families all in the name of the all mighty dollar.

Not caring who's lives they destroy just because they couldn't buy their 1,937th ferrari enzo, possibly taking the money out of the pockets of a family that needs it for an operation or something.

I'm sure the hospital isnt going to support this stroke victim and write off the bill.

And the Riaa's opinion? Who cares, he possibly, and we're just guessing with very little to no evidence at all, let alone water tight, downloaded a mp3 that was already in the wild and the damage he supposidly did or did not do is actually miniscule in the grand scheme of things.

I'm actually suprised the major media outlets aren't having a field day with this one.

The major media outlets have no intention to report about the injustice of the RIAA actions. It's all one big conglomerate of the same companies and shareholders. And with regards to your opinion about mp3 and damages. Since the copyrightholders themself DO NOT offer to sell mp3 music that those "criminal thiefs" want, there is never ever one single cent damage if someone gets a product that is not for sale in the first place after all.

RIAA has poor manners to go after someone who just suffered a stroke and probably did not download or share any music. RIAA needs to understand that their evidence is unreliable and more importantly doesn't prove infringement.

The only response that works on the RIAA is shaming. And that requires media attention, and by media I mean the Mainstream Media. Blogs can be dismissed as the rantings of fanatics. But if we can get the folks who support disabled people riled up & upset at the RIAA, we can get some leverage. So keep it polite & try to pass this on to people who will do better at getting MSM attention.

*1. Remember, folks, no profanity. The RIAA reads this blog, and they have referred the judges to it. So let's keep the commentary dignified. No profanity, no unsupported personal attacks, etc*

i dont believe any amount of profanity would be enough to condemn a body that would sue a disabled guy paralysed on one half of his bodyi came across this on digg, i dont follow the stories of the riaa but this caught my eye, its void of any humanity and decency

This is the comment policy on "Recording Industry vs. The People". If you think any part of it is unfair, or if you think I've omitted anything that should be in there, please let me know.Thank you.

Comment policy:

-no comment spam-no profanity-no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)-no unsupported accusations-no defamation-no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights; lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy)-nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.

On the subject of how much actual "damage" is caused by illegal downloading, the textbook for my course in American Popular Music had this to say about downloading music around when the iTunes Music Store was created and when Roxio acquired Napster:

While there was no question that CD sales had gone down in this period, there were many questions regarding just how much, what portion could be attributed to free downloading, and, whether, in its relentless pursuit of file swappers, the music industry had lost sight of its primary mission. Industry figures of decline ranged from 26 percent to 31 percent over the three-year period marking the start of the new millenium and file sharing was always cited as a major source of the problem. According to statistics from Forrester Research, however, the decline in sales since 2000 had been 15 percent, with only 35 percent of that amount due to unauthorized downloading.* In addition to being perceived as the cultural schoolyard bully, there was also some sense that the industry was exaggerating both its losses and the proportion that could be attributed to file swapping. Seldom did the music industry analysis attribute the decline to competition from DVDs and video games or the fact that so many record labels were in play that industry executives were more concerned about cutting costs, trimming artist rosters, and managing bottom lines than producing music. Nor did anyone mention that the music industry's losses were comparable to the decline in the economy as a whole following the devastating effects of 9/11. Moreover, implicit in the music industry's logic was an unproven assumption that a CD downloaded was a CD not bought. If anything, there were more studies showing that downloaders bought more music than nondownloaders, rather than the other way around. Whatever the actual figures, it finally had to be admitted that while punitive lawsuits might make file swappers fearful of downloading for a time--at best, a temporary reprieve awaiting better user anonymity--they certainly were not designed to stimulate CD sales. The San Jose Mercury News put it best when it editorialized: "Suing your customers, as a long-term strategy, is dumb."**

That and the fact that we're listening to *formulated* music rather than anything original. Everything sounds alike these days, no wonder nobody wants to buy CDs--they don't want to listen to anything new!

Excerpt from Reebee Garofalo's "Rockin' Out - Popular Music in the U.S.A.", Third Edition.* Neil Strauss, "File-Sharing Battle Leaves Musicians Caught in Middle," New York Times, 14 September 2003. URL: http://www.nytimes.com/2003/09/14/technology/14MUSI.html** Editorial, "The Sound of Lawsuits," San Jose Mercury News, 9 September 2003. URL: http://www.bayarea.com/mld/mercurynews/news/opinion/6727444.htm

Did the alleged infringement take place in Michigan? Was the defendant in Michigan at the time? Does the defendant have an Internet connection in his name in Michigan that someone else was using? Does the defendant own property in Michigan?

I'm just trying to figure out why the RIAA thinks the Eastern District of Michigan would have jurisdiction over the defendant.

This is the comment policy on "Recording Industry vs. The People". If you think any part of it is unfair, or if you think I've omitted anything that should be in there, please let me know.Thank you.

Comment policy:

-no comment spam-no profanity-no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)-no unsupported accusations-no defamation-no threats-no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I

don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to

discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them; lawyers

and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society)-nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.

I can only say that miharu's citations and comments are spot on. I've had kids tell me that the real reason they download one or two songs is that basically they only find the one or two worth downloading, the rest being garbage in their view. Also, music produced today is so digitally processed and "polished" - with all audible flaws that would have otherwise lent character to the performance burnished out - that it really holds no long term staying power.

As an example, one can listen to an original Beatles tune a thousand times and still hear something you never heard previously. However modern day, digitally processed pop is so devoid of anything worth listening to beyond it's original release date that it's very disposability makes the thought of "owning" the tracks a waste of money.

For my part, I get my music for free - by acquiring vinyl. I rarely listen to digital music and I have people just handing me vinyl for free all over the place. It sounds vastly better than digital and it's a heck of a lot cheaper.

I don't know if that person is or is not an RIAA troll, but I have no patience for that type of mentality.

Following are my comment policies:

This is the comment policy on "Recording Industry vs. The People". If you think any part of it is unfair, or if you think I've omitted anything that should be in there, please let me know.Thank you.

Comment policy:

-no comment spam-no profanity-no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)-no unsupported accusations-no defamation-no threats-no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them; lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society)-nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.

Having worked in the digital publication industry I can tell you that there's only about a 10% loss due to piracy. Most people prefer print mags unless they are news or circulation mags. The digital publishers get an earful from the publication companies about how piracy is costing them $$$. The pub industry feels if someone is willing to pirate their mag or book then that's $50 (or whatever the full price is) lost. However, if anti-piracy measures are put into place they actually find themselves losing revenue in their digital ventures. Turns out piracy was a form of advertising.

The old monolithic media architectures obviously aren't doing their job and adapting to the new internet medium. For crying out loud it's been 6 years since most people have subscribed to broadband. Criminalizing your customers has never worked. Just ask Microsoft. Has their sales of Vista risen since the implementation of their aggresive registration system? NO it hasn't! It's gone down. The reality is that the product is not needed and full of issues that haven't been ironed out yet. Ergo, all the returned laptops and desktop PCs with Vista installed on them.

The sad fact is that money is the only thing some people and companies care about, no matter what we might think of them.

I too am tired of random facts twisted to "prove" copyright infringement. While the RIAA most likely didn't know anything about the guy they were suing until after the lawsuit was filed, its not likely they'll give any consideration to his situation with their history.

The recording industry seems to be tightening their grip because there's less good product and more consumers looking to get away from anything to do with them. Suing people outside your target market to scare your diminishing source of income is pretty low, and people see through that.

All we want to do is discover and share good music. Limiting that with frivolous lawsuits will drive listeners further away and to other means of satisfying those needs. What's next, banning internet radio because it can be recorded in a round-about way? We better ban computers then... just to be safe. I'm surprised there isn't already a hefty tax on all internet connections. Although, I wouldn't mind that tax as much if it allowed unlimited music downloading and sharing with no DRM.

I would ask anyone of influence in these RIAA lawsuits to forget about the money and think about what kind of future this is creating. What good can come of destroying lives for money and bad press?

There are a number of remedies available to those who are subjects of improper lawsuits, including a suit back for "abuse of process."Also, there is an old English common law offense called "barratry," which means the filing of excessive lawsuits. Any judge hearing of this will surely be amused, since he or she studied this in law school, but has very likely not seen it since. Were I subject to this type of RIAA suit, I would immediately countersue on those grounds. This is not expensive, and surely one can find a law student to help (anonymously, and without fee) in drafting the proper papers.

hello miharu, great excerpt!! I read Reebee Garofalo's "ROCKIN' THE BOAT: Mass Music and Mass Movements" for one of my SOC classes. I certainly agree w/ Prof Garofalo. I believe that the RIAA is going about this all wrong. They have now blaming p2p networks rather than face the ugly truth: the times are a-changin' technologically, culturally and economically and they have failed to keep up. Any student of history and economics knows that events and trends are cyclical. Something comes along, established dominance for a while, then declines as the next wave of innovation and change takes hold. 8 tracks were replaced by cassette tapes, which were replaced by CD's. VHS was replaced by DVD, which will soon be replaced by HD-DVD/Blu-ray.

In NYC, where I live, more people seem to own mp3 players than CD players now. It is quite rare to see someone with a portable CD player on the train or bus. If it's not an iPod (but in 75% of cases, it's an iPod), it's another brand of player, or a PSP, cellphone, or other digital music player. What is happening with the music industry now is a part of the natural order, but that is not what the RIAA wants you to know. No.. it's not changing consumer preferences and technology -- it's them thieves like Mr. Paladuk. UMG chairman Doug Morris says: "These devices are just repositories for stolen music, and they all know it".

If the RIAA were to spend even a fraction of the $$ on promoting goodwill and music appreciation that they're spending on these unjust lawsuits, they'd come out on top. Kids don't have a lot of money, but they have a lot of time, and collectively, a lot of power (MySpace, YouTube). When they grow up and have jobs, they'll have a LOT of disposable income. Like it or not, p2p and file-sharing isn't going away. Napster changed the entire world, and no amount of suing can undo that effect.

Instead of turning young people on to a lifelong love of music and support for the arts by encouraging musical discovery and sharing, the RIAA is doing the opposite-- creating resentment and fear. By suing kids and families, the RIAA is making new enemies everyday.

As a music lover, I discovered almost all the music I like now as a result of music sharing, from roommates, co-workers, and friends. I was exposed to stuff I never heard of before, and would never even think to pick up in a store. For $18 a CD, that's a big risk if the CD sucks, but if I could listen to a friend's CD or song and decide I like it, I'll go buy the CD. I agree with Prof Garofalo.. sharing actually promotes sales. If I only had access to radio or MTV, my music tastes right now would be pretty limited and poor. I'd be limited to top 40's, not the eclectic collection I have now, from great ladies of the blues and Woody Guthrie to Finnish death metal. I would say I spent several thousand dollars buying music that was introduced to me by friends or the Internet.

Did the alleged infringement take place in Michigan? Was the defendant in Michigan at the time? Does the defendant have an Internet connection in his name in Michigan that someone else was using? Does the defendant own property in Michigan?

Like that matters.

You have to fight back, people. Every time someone settles, they feed the monster.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove